1 BEFORE THE MEMBER ::::::::::: MACT ::::::::::: DHUBRI MAC Case No.484/2005 Parties:- Najimuddin @ Jijamuddin S/O: Kitab Ali Sk VILL: Naomati (Bhabanipur) P.O: Galia P.S: Barpeta Dist: Barpeta, Assam ..Claimant Vs. 1.Sri Upendra Prasad Yadav (Owner of the Truck No.HR-01-G/3875) 2.The Oriental Insurance Company Limited Patna Branch ..Opp. Parties Present: - Sri Anup Narayan Ghosh, Member, MACT, Dhubri Appearance:- Sri P. Patwary, Advocate for the claimant None appeared for OP No.1 Smti. Prabha Jain, advocate for OP No.2 Date of argument: 06-02-2019 Date of judgment: 06-03-2019 Judgment 2 This claim petition has been filed by the claimant U/s. 166 of M.V. Act for granting compensation in respect of motor vehicular accident which occurred on 02-01-2005 on NH-31 near Panbari Mosque at about 8:35 A.M. under Gauripur P.S. Claimant’s case in brief is that on 02-01-2005 at about 8:35 A.M. while the victim was walking by the left side of the road near Panbari Mosque and offer subscription in the Panbari Mosque but he was knocked down from behind by the offending truck. As a result of the said accident he sustained multiple grievous injuries causing permanent disability. Claimant’s side further stated in his claim petition that he is still bed ridden and unable to work and prayed before the Hon’ble Court to award compensation amounting to Rs. 10,00,000/- along with interest from the date of institution of this case till realisation under different heads as admissible under law. On receipt of this petition an MAC Case was registered and summon was issued to the owner of the offending vehicle. Although owner of the offending vehicle had received summon but did not turn up hence this case proceeded ex-parte against OP No.1. OP No.2 insurer of the offending vehicle i.e. Oriental Insurance Company Limited had appeared through his counsel and filed written statement. The main contentions of the written statement submitted by OP No.2 are as follows. That this claim petition is not maintainable in its present form, that there is no cause of action against the answering OP, hence claim petition is liable to be rejected, that claim petition is barred by principle of estoppels waiver and acquiescence, hence it is liable to be dismissed, that claim petition is baseless speculative, hence liable to be dismissed, that answering OP hereby reserve the rights to all the defences available to the owner OP if necessary as provided U/s. 170 of the M.V. Act, that route permit, driving licence, registration certificate, fitness certificate may be directed to be produced by the owner of the vehicle otherwise it shall be presumed that there is a statutory violation of the policy condition and hence answering OP is liable to pay any compensation and the claim, if any, is subject to the 3 compliance of Section 64 VB of the Insurance Act. OP prayed before the Hon’ble Court to dismiss the claim petition with costs. After going through the pleadings of both sides my learned predecessor had framed following issues. 1 Whether the accident took place due to rash and negligent driving of the vehicle No.BR-IG/3875 (Truck) and sustained injuries due to the said accident? 2 Whether the offending vehicle was duly insured with M/s. Oriental Insurance Company Limited at the time of accident? 3 What shall be the just and proper compensation and by whom payable? 4 Whether the claimant is entitled to get the relief as prayed for? DECISION AND REASONS THEREOF ISSUE No. 1 to 4: As all these issues are inter-related so they are taken up together for discussion and decision. Evidence led by claimant side are briefly discussed. CW-1 Nazimuddin claimant in his evidence on affidavit had stated that he had filed this claim case claiming compensation for the injuries sustained by him in a motor vehicular accident which took place on 02-01-2005 under Gauripur P.S. in the district of Dhubri, Assam. He further stated in his evidence on affidavit that on 02-01- 2005 at about 8:35 A.M. while he was walking by the left side of the road near Panbari Mosque to offer subscription in the Panbari Mosque at that time one Truck bearing registration No.BR-IG/3875 coming from Alomganj side in a very high speed and reckless manner knocked down him from behind. As a result he was thrown out from the road and sustained multiple grievous injuries. He further stated in his evidence on affidavit that immediately after the accident local people along with police personal brought him to Gauripur Hospital and later forwarded him to Dhubri Civil Hospital where he was admitted as an indoor patient from 02-01- 4 2005 to 20-07-2005 i.e. for 19 days and thereafter he was referred to GMCH, Guwahati where he took treatment from 21-06-2005 to 22-07- 2005 as an indoor patient i.e. another 32 days and he was hospitalized due to aforesaid accident for 51 days in Guwahati and Dhubri and took treatment at Barpeta an Orthopedic Surgeon of Panbazar, Guwahati. He further stated in his evidence on affidavit that as a result of the said accident he sustained multiple grievous injuries which are as follows: 1. Crush injury right hip and thigh with fracture ischeal bone of right side. 2. Fracture of right mandible (Xegematic bone) 3. Besides soft tissue injuries also causing permanent disability of the right thigh and hip since he is unable to bend forward, lift heavy weight as such lost his working as well as earning capacity and his profession. He further stated in his evidence on affidavit that during his long treatment for two years. He admitted in Dhubri Civil Hospital, GMCH, Guwahati and also took treatment under different doctors of Barpeta and finally Dr R.N. Chakraborty, Panbazar, Guwahati had completed his treatment and assessed his injury that he sustained 40% permanent disability. That during the treatment period in Dhubri, Guwahati and Barpeta he had to take assistance of two attendants for a period of two years. He further stated in his evidence on affidavit that accident took place due to rash and negligent driving by the driver of the offending Truck bearing registration No.BR-IG/3875 and its was duly investigated by police and accordingly Gauripur P.S. had registered a case vide Gauripur P.S. Case No.05/05 U/s. 279/338 IPC against the driver of the offending vehicle. He further stated in his evidence on affidavit that he had incurred expenditure amounting to Rs. 1,50,000/- for his long medical treatment and some of the medical expense vouchers could not be preserved due to mental tension, anxiety. However, expense vouchers amounting to Rs. 25,356/- has been submitted. He prayed before the Hon’ble Court to award compensation 5 amounting to Rs. 10,00,000/- along with interest from the date of institution of this case till realisation under the head of pecuniary loss and non pecuniary loss. CW-1 had exhibited following documents. Ext- 1 is the Discharge Certificate issued by Dhubri Civil Hospital, ext-2 is the Discharge Certificate of GMCH, Guwahati, ext-3 to ext-56 are Medical Prescriptions with Vouchers amounting to Rs. 25,356/-, ext-57 is the Blood Testing Report, ext-58 is the X-Ray Report, ext-59 is the Electrocardiogram, ext-60 is the ECG Report, ext-61 is the Medical Certificate, ext-62 is the Accident Information Report in Form No.54, ext-63 to ext-65 are the certified copy of Injury Report & ext-67 & 68 is the certified copy of Seizure List. Learned counsel on behalf of Oriental Insurance Company Limited had cross examined the said witness and in his cross examination he had stated that he did not personally see the offending vehicle which hit him from behind. He further stated in his cross examination that he had mentioned the offending truck based on his information received from Police Report but he cannot able to say exact what speed said vehicle was being driven at the relevant time of accident. He further stated in his cross examination that he has not filed any exhibits as documentary proof of his age like Voter List, Voter Identity Card or Birth Certificate, etc. He further stated in his cross examination that after the accident on 02-01-2005 he was taken to Dhubri Civil Hospital for necessary medical treatment. Ext-1 is the Discharge Certificate of Dhubri Civil Hospital. In ext-1 it is mentioned that he was referred to GMCH, Guwahati on 20-01-2005. Ext-2 is the Discharge Certificate of GMCH, Guwahati wherein it is revealed that he was admitted at GMCH, Guwahati on 21-06-2005 and after treatment he was discharged from the hospital on 22-07-2005. He denied in his cross examination that ext-2 is not related to the injury sustained by him due to RTA. He also denied in his cross examination that medical bills and vouchers, cash memos, etc from ext-3 to 41 are not related to the injuries and treatment sustained by him due to RTA. He denied in his cross examination that ext-61 i.e. Medical Certificate has been 6 obtained by illegal means or wrongful gain by influencing the doctor. He further stated in his cross examination that he has not submitted any disablement certificate issued by doctor of GMCH, Guwahati nor from Dhubri Civil Hospital.